Black Hills Institute of Geological Research v. Fort Peck Paleontology et al

Filing 101

AMENDED Statement of Undisputed Fact re: 80 MOTION for Partial Summary Judgment. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Tease, Antoinette) Modified on 10/20/2011 to add word "Amended". (SLR, ).

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TEASE, ANTOINETTE
ROCKY MOUNTAIN TECHNOLOGY GROUP, INC
207 N BROADWAY STE 509
BILLINGS, MT 59101-1951

Page 1

4 of 8 DOCUMENTS
Black Hills Institute of Geological Research; Black Hills Museum of Natural History
Foundation, Inc., a non-profit corporation, Plaintiffs, Joseph M. Butler, Appellant,
v. South Dakota School of Mines and Technology, Appellee, United States
Department of Justice, Defendant. Black Hills Institute of Geological Research;
Black Hills Museum of Natural History Foundation, Inc., a non-profit corporation,
Appellants, v. United States Department of Justice, Appellee.
No. 93-1600, No. 93-1602
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
12 F.3d 737; 1993 U.S. App. LEXIS 32576; 28 Fed. R. Serv. 3d (Callaghan) 232
October 11, 1993, Submitted
December 15, 1993, Filed
SUBSEQUENT HISTORY:
[**1] Rehearing and
Rehearing En Banc Denied February 2, 1994 (93-1602),
Reported at: 1994 U.S. App. LEXIS 1655.
PRIOR HISTORY:
Appeals from the United States
District Court for the District of South Dakota. District
No. CIV 92-5070. Honorable Richard Battey, District
Judge.

appellee United States in case No. 93-1602 was Edward
Shawaker of Washington, D.C. Appearing on the brief
were Ted L. McBride, Robert A. Mandel, Myles E. Flint,
and David C. Shilton.
JUDGES: Before JOHN R. GIBSON, MAGILL, and
BEAM, Circuit Judges.
OPINION BY: MAGILL

COUNSEL: Counsel who presented argument on behalf
of the appellant Butler in case No. 93-1600 was Joseph
Butler of Rapid City, South Dakota. Appearing on the
brief was Mark F. Marshall of Rapid City, South Dakota.
Counsel who presented argument on behalf of the
appellant Black Hills Institute in case No. 93-1602 were
Patrick Duffy of Rapid City, South Dakota and Mark F.
Marshall of Rapid City, South Dakota.
Counsel who presented argument on behalf of the
appellee School of Mines in case No. 93-1600 was Gene
N. LeBrun of Rapid City, South Dakota. Appearing on
the brief were Edward J. Shawaker and David C. Shilton
of Washington, D.C.
Counsel who presented argument on behalf of the

OPINION
[*739] MAGILL, Circuit Judge.
Black Hills Institute of Geological Research and
Black Hills Museum of Natural History Foundation
(collectively, "Black Hills") appeal the district court's 1
judgment in favor of the United States. The district court
found that the United States holds title to a valuable
Tyrannosaurus rex skeleton ("the fossil" or "Sue") in trust
for Maurice Williams ("Williams"), an individual Indian
who is the beneficial owner of trust land on which Black
Hills discovered the fossil. Joseph M. Butler appeals
separately from the district court's order imposing Rule
11 sanctions on Butler for naming an improper party as a
defendant. We affirm the district court's judgment that the
United States holds trust title to the fossil and reverse its

Page 2
12 F.3d 737, *739; 1993 U.S. App. LEXIS 32576, **1;
28 Fed. R. Serv. 3d (Callaghan) 232
Rule 11 order.
1
The Honorable Richard H. Battey, United
States District Judge for the District of South
Dakota.
I. BACKGROUND
[**2] This case is before us for the third time. The
factual background is uncomplicated. Black Hills collects
and restores fossils for display in museums. In August
1990, Black Hills was excavating fossils in western South
Dakota. Sue Hendrickson, a researcher working on the
project, discovered Sue on Williams' ranch while on
break. Since 1969, the United States has held this ranch
land in trust for the sole use and benefit of Williams, an
Indian. Two days after the discovery, Black Hills
scientists began excavating Sue, the most complete and
valuable Tyrannosaurus rex skeleton known to man, from
Williams' land. At some point during the excavation,
Black Hills purported to purchase from Williams the right
to excavate Sue for $ 5000. After excavation, Black Hills
moved the ten tons of bones to Hill City, South Dakota,
where scientists began the laborious process of restoring
the fossil.
In May 1992, however, federal officers seized Sue
and moved her to the South Dakota School of Mines and
Technology ("School of Mines"). The United States
attorney for South Dakota ordered the seizure on the
ground that Black Hills' removal of Sue from Williams'
land violated federal criminal statutes relating [**3] to
federal lands. Black Hills then brought suit in district
court to quiet title to Sue. In conjunction with this action,
it sought a preliminary injunction for possession of the
fossil pending the outcome [*740] of the suit. After the
district court denied Black Hills a preliminary injunction,
Black Hills moved under Eighth Circuit Rule 8A to this
court for an order granting it custody of Sue pending
appeal of the injunction denial.
In Black Hills Institute of Geological Research v.
United States Department of Justice, 967 F.2d 1237,
1241 (8th Cir. 1992) (Black Hills I), we found that the
district court had anomalous jurisdiction over the
temporary custody issue and remanded for a
determination of the proper temporary custodian. The
district court concluded that Sue should remain at the
School of Mines pending disposition of the case on the
merits. In Black Hills Institute of Geological Research v.
United States Department of Justice, 978 F.2d 1043,

1045 (8th Cir. 1992) (Black Hills II), we affirmed the
district court's custody order, dismissed with prejudice
Black Hills' appeal of the preliminary injunction denial,
and [**4] remanded the case for proceedings on the
merits. Meanwhile, Black Hills amended its complaint by
abandoning the quiet title theory of its case and instead
seeking only an order requiring the United States to
return Sue to it.
On remand, the district court found that it still had to
determine ownership of Sue despite Black Hills' amended
complaint because "[a] permanent possessory right to the
fossil is subsumed within the context of ownership." D.
Ct. Mem. Op. at 6 (Feb. 3, 1993). It then concluded that it
had federal question jurisdiction under 28 U.S.C. § 1331
because the case involved the application of federal
statutes relating to Indian trust lands. Reaching the
merits, the district court found that Sue was an interest in
land under the trust land statutes. Because Williams
failed to receive the Secretary of the Interior's ("the
Secretary") approval for his attempted sale of Sue to
Black Hills, the court reasoned, the transaction was void
and the United States retained title to Sue in trust for
Williams. Black Hills now appeals.
II. DISCUSSION
A. Subject Matter Jurisdiction
The first issue we must address is the district court's
basis [**5] for subject matter jurisdiction over this case.
We find that the district court had general federal
question jurisdiction under 28 U.S.C. § 1331. Black Hills'
complaint alleged facts sufficient to bring the case within
5 U.S.C. § 702's broad waiver of sovereign immunity.
Section 702 waives the federal government's sovereign
immunity in cases challenging agency action--here, the
Department of Justice's seizure of Sue--and seeking relief
other than money damages. 2 See 5 U.S.C. § 702; Specter
v. Garrett, 995 F.2d 404, 410 (3d Cir.) (holding that §
702's waiver of sovereign immunity is not limited to
cases brought under the Administrative Procedure Act),
cert. granted, 114 S. Ct. 342 (1993); Presbyterian Church
v. United States, 870 F.2d 518, 525 (9th Cir. 1989)
(holding that the term "agency action" "was clearly
intended to cover the full spectrum of agency conduct").
District courts have jurisdiction under § 1331 to hear
cases falling within § 702's consent to suit. See Califano
v. Sanders, 430 U.S. 99, 105, 51 L. Ed. 2d 192, 97 S. Ct.
980 (1977) [**6] (holding that § 1331 confers
jurisdiction on federal courts to review agency action

Page 3
12 F.3d 737, *740; 1993 U.S. App. LEXIS 32576, **6;
28 Fed. R. Serv. 3d (Callaghan) 232
"subject only to preclusion-of-review statutes created or
retained by Congress").
2
Section 702 provides that its waiver of
sovereign immunity does not apply "if any other
statute that grants consent to suit expressly or
impliedly forbids the relief which is sought." 5
U.S.C. § 702. Under 28 U.S.C. § 2409a(a),
Congress waived the government's sovereign
immunity in suits seeking to quiet title to real
property. Section 2409a(a), however, "does not
apply to trust or restricted Indian lands." Id. Thus,
§ 2409a retains sovereign immunity for suits
seeking to quiet title to Indian trust lands. Section
2409a(a) does not "expressly or impliedly
forbid[] the relief which is sought" here because
Black Hills seeks the return of what is now
personal property, not a determination of title to
Indian trust land.
B. Ownership of the Fossil
We now reach the merits of the [**7] case. We must
first decide precisely what issue is before us. Initially,
Black Hills sued the government to quiet title to Sue.
Black Hills' second amended complaint abandoned the
quiet title action and sought an order requiring the
government to return the fossil. Black Hills argues that
the district court erred because it determined ownership,
an issue Black Hills claims that it did not raise in the
second amended complaint. According to Black Hills, the
district court "only [*741] had jurisdiction to determine
whether [Black Hills] or the Department of Justice was
entitled to possession of the fossil." Appellant's Br. at 41.
In the second amended complaint, however, Black
Hills stated that it "paid Williams $ 5000 in exchange for
Sue. [Black Hills] scientists wrote a check to Williams on
August 27, 1990, which he accepted and cashed in full
payment for Sue." 2d Amended Compl., P II, at 1. Thus,
Black Hills alleged that it owned the fossil outright, not
that it leased it or had some possessory interest that did
not amount to full ownership. In light of this allegation,
we can only construe its request that the district court
order the "United States to return the fossil to [Black
Hills]" [**8] as a claim for permanent possession of
Sue. Id. at 5. Determining whether Black Hills is entitled
to permanent possession necessarily requires determining
which party actually owns the fossil. Thus, we must
determine whether the transaction between Williams and
Black Hills transferred title of Sue to Black Hills.

The ownership issue depends on our construction of
several statutes governing Indian trust land. Sue
Hendrickson discovered the fossil on land to which the
United States holds legal title in trust for Williams, an
individual Indian. Under the trust instrument, the United
States will hold the land "in trust for the sole use and
benefit of" Williams until the trust relationship expires on
September 23, 1994. The United States acquired the land
pursuant to the Indian Reorganization Act of 1934 ("the
IRA"), see 25 U.S.C. § 465, and issued the trust patent to
Williams pursuant to a provision of the General
Allotment Act of 1887 ("the GAA"), see 25 U.S.C. § 348.
3 Until the trust expires in 1994, Williams is a beneficial
owner of the land, retaining certain judicially-recognized
rights but lacking [**9] the absolute right to dispose of
the land as he pleases.
3
The IRA ended the federal government's
policy of allotting tribal land in severalty to
individual Indians. See 25 U.S.C. § 461. Under 25
U.S.C. § 335, however, provisions of the GAA
continue to apply "to all lands heretofore
purchased or which may be purchased by
authority of Congress for the use or benefit of any
individual Indian or band or tribe of Indians,"
"unless otherwise specifically provided." The
relevant GAA provision that applies here is 25
U.S.C. § 348, which governs the trust relationship
between the government and the individual
Indian.
Other provisions of the IRA reflect the limits of
Williams' interest in his trust land. Section four of the
IRA, subject to several exceptions not relevant here,
prohibits the "sale, devise, gift, exchange, or other
transfer of restricted" Indian trust lands. Id. § 464
(codifying § 4 of the IRA). [**10] On application of
Indian owners, however, the Secretary has discretion "to
remove restrictions against alienation, and to approve
conveyances, with respect to lands or interests in lands
held by individual Indians under [the IRA]." Id. § 483;
see also 25 C.F.R. § 152.22 (1993) (providing that "trust
or restricted lands . . . , or any interest therein, may not be
conveyed without the approval of the Secretary"); id. §
152.23 (describing the application and approval process).
These statutes and regulations establish a scheme by
which beneficial owners of Indian land such as Williams
may alienate all or part of their interest before their trust
instruments expire. Outside of the permitted transactions
not applicable here, the only way such owners may

Page 4
12 F.3d 737, *741; 1993 U.S. App. LEXIS 32576, **10;
28 Fed. R. Serv. 3d (Callaghan) 232
alienate an interest in their trust land is by securing the
prior approval of the Secretary. An attempted sale of an
interest in Indian trust land in violation of this
requirement is void and does not transfer title. See Mottaz
v. United States, 753 F.2d 71, 74 (8th Cir. 1985),
reversed on other grounds, 476 U.S. 834, 90 L. Ed. 2d
841, 106 S. Ct. 2224 (1986).

Holding otherwise, the Court reasoned, would
reduce the restraint on alienation to "small
consequence." Id. Thus, Paine does not apply here
because Sue was a valuable part of the land and
nothing in the record suggests that she was
excavated to clear the land for farming or other
similar purposes.

Here, Black Hills claims that it purchased [**11] the
right to excavate Sue from Williams for $ 5000. Williams
did not apply to the Secretary for prior approval of this
transaction nor did the Secretary ever approve it. All
parties agree that the fossil is now personal property
because it has been severed from the land. In Starr v.
Campbell, 208 U.S. 527, 534, 52 L. Ed. 602, 28 S. Ct.
365 (1908), however, the Supreme Court held that timber
from Indian trust land that the beneficial owner sold was
subject to the trust patent's restraint on alienation even
though the timber became personal property after the
purchaser severed it from the land. 4

[**13] Whether the fossil was "land" within the
meaning of both 25 U.S.C. § 464 and 25 U.S.C. § 483 is a
matter of federal law. Because Congress has provided no
definition of "land" applicable to these statutes, however,
we may refer to state property law for guidance. See
United States v. Certain Real Property at 2525 Leroy
Lane, 910 F.2d 343, 349 (6th Cir. 1990) (discussing
federal forfeiture statutes), cert. denied, 111 S. Ct. 1414
(1991); see also Wilson v. Omaha Indian Tribe, 442 U.S.
653, 676, 61 L. Ed. 2d 153, 99 S. Ct. 2529 (1979)
(finding that state property law controlled title dispute
between Indian and non-Indian claimants to land even
though issue was ultimately one of federal law). South
Dakota law denominates two classes of property: "real or
immovable" property and "personal or movable"
property. S.D. Codified Laws Ann. § 43-1-2. "Real or
immovable property consists of: (1) Land; (2) That which
is affixed to land; (3) That which is incidental or
appurtenant to land; (4) That which is immovable by law.
Every kind of property that is not real is [**14]
personal." Id. § 43-1-3. "Land," in turn, "is the solid
material of the earth, whatever may be the ingredients of
which it is composed, whether soil, rock, or other
substance." Id. § 43-1-4.

[*742] Thus, the relevant inquiry for purposes of
assessing the validity of the transaction is whether the
fossil was personal property or land before Black Hills
excavated it. If it was land within the meaning of the
relevant statutes and regulations, the transaction between
Williams and Black Hills is void and the United States
holds Sue in trust for Williams because the trust
continued in Sue when she became personalty. Cf.
United States v. Brown, 8 F.2d 564, 566 (8th Cir. 1925)
(explaining in the context of Indian trust land that "no
change of form of property [**12] divests it of a trust[;]
[a] substitute takes the nature of the original and stands
charged with the same trust"), cert. denied, 270 U.S. 644,
70 L. Ed. 777, 46 S. Ct. 210 (1926).
4 The Supreme Court has held that a beneficial
owner of Indian trust land could sell timber from
his land without violating the restraint on
alienation because "the cutting was incidental to
the preparation of [the] land for agricultural uses."
Felix S. Cohen, Handbook of Federal Indian Law,
at 539 n.94 (1982 ed.) (citing United States v.
Paine Lumber, 206 U.S. 467, 473-74, 51 L. Ed.
1139, 27 S. Ct. 697 (1907)). The Court
distinguished Paine, however, in Starr. In Starr,
the Court found the timber subject to the restraint
on alienation because the timber constituted 15/16
of the value of the land and the land was "timber
land" unsuitable for farming. 208 U.S. at 534.

We hold that the fossil was "land" within the
meaning of § 464 and § 483. Sue Hendrickson found the
fossil embedded in the land. Under South Dakota law, the
fossil was an "ingredient" comprising part of the "solid
material of the earth." It was a component part of
Williams' land, just like the soil, the rocks, and whatever
other naturally-occurring materials make up the earth of
the ranch. Black Hills makes several arguments to the
contrary, none of which we find persuasive. That the
fossil once was a dinosaur which walked on the surface
of the earth and that part of the fossil was protruding
from the ground when Hendrickson discovered it are
irrelevant. The salient point is that the fossil had for
millions of years been an "ingredient" of the earth that the
United States holds in trust for Williams. The case very
well might be different had someone found the fossil
elsewhere and buried it in Williams' land or somehow

Page 5
12 F.3d 737, *742; 1993 U.S. App. LEXIS 32576, **14;
28 Fed. R. Serv. 3d (Callaghan) 232
inadvertently left it there. Here, however, a
Tyrannosaurus rex died [**15] some 65 million years
ago on what is now Indian trust land and its fossilized
remains gradually became incorporated into that land.
Although it is movable, personal property now, at the
time Hendrickson discovered the fossil it was part of
Williams' land and thus is subject to § 464 and § 483. As
in Starr, 208 U.S. at 534, where an Indian sold timber
constituting 15/16 of the value of the land, we would
render the statutory restraint on alienation here essentially
meaningless if Williams could transfer the right to
excavate a priceless fossil derived from otherwise
nondescript land without the Secretary's permission.
Because he did not seek the Secretary's approval, we hold
that Williams' attempted sale to Black Hills is void 5 and
that the United States holds Sue [*743] in trust for
Williams pursuant to the trust patent.
5 There is an ongoing dispute between Williams
and Black Hills regarding this transaction. We
intimate no opinion as to the remedies Black Hills
may have under state law as to its $ 5000 payment
to Williams. Moreover, because Black Hills does
not argue that it acquired anything less than title
to Sue, we need not decide whether Williams
could have leased Sue or transferred other rights
to Black Hills.
[**16] Black Hills argues, however, that the trust
relationship between Williams and the United States does
not govern the fossil. It claims that the government's trust
duties over Williams' land are limited to safeguarding the
land base of the reservation through restricting alienation
of the land and preserving the land's tax-exempt status.
The government's seizure of the fossil, it asserts,
exceeded the scope of the trust because no statutes
regulate the management of fossils on Indian trust land
and personal property such as the fossil is unrelated to the
land base. Black Hills cites United States v. Mitchell, 445
U.S. 535, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980)
(Mitchell I), and United States v. Mitchell, 463 U.S. 206,
77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983) (Mitchell II), for
support.
In Mitchell I, individual Indians sued the United
States for mismanaging timber resources on trust land of
which they were the beneficial owners. The Supreme
Court found that the GAA, the statute under which the
Indians had received their beneficial interests in the land,
did not "impose any duty upon the Government to

manage timber resources." 445 U.S. at 542. Rather,
[**17] the GAA created only a "limited trust
relationship" that sought "to prevent alienation of the land
and to ensure that allottees would be immune from state
taxation." Id. at 542, 544. In Mitchell II, however, the
Court found that, even though the GAA was not a basis
for liability, the United States could be liable for damages
for mismanaging the timber because an elaborate
statutory and regulatory scheme imposed fiduciary duties
on the government relating to the management of timber
resources on Indian trust land. 463 U.S. at 226. Mitchell I
and Mitchell II, Black Hills claims, together compel the
conclusion that the trust relationship between the
government and Williams does not encompass the
attempted sale of Sue because the absence of a statutory
scheme governing fossils means that the government has
only limited trust duties where fossils are involved. The
limited duty of preventing alienation of the land, it
argues, does not include preventing sales of fossils.
We reject the Black Hills' argument that the Mitchell
cases suggest that the government exceeded the scope of
its trust relationship with Williams. [**18] First, the
fiduciary duties of the government to beneficial owners
of trust land, the issue that the Mitchell cases addressed,
and the ability of beneficial owners to alienate trust land,
the issue here, are different questions. Thus, that there are
no statutes or regulations specifically governing the sale
of fossils is not important. The absence of such regulation
only suggests that the government could not be liable in
damages to Williams for breaching alleged fiduciary
duties relating to the management of fossils on his land. It
does not, however, affect the validity of Williams'
attempted sale of the fossil to a third party because there
are statutes and regulations governing the alienation of
interests in Indian trust land, such as fossils. Moreover,
the Court's holding in Mitchell I that the GAA imposed
only limited trust duties on the government does not help
Black Hills. Indeed, Congress enacted the GAA to
prevent alienation of Indian trust land. 445 U.S. at 542.
Because the fossil was part of Williams' trust land and he
failed to secure approval for his attempted sale of the
right to excavate it, we hold that the United States'
seizure [**19] of the fossil was a proper exercise of its
trust status under the GAA. 6 Finally, nothing in either
Mitchell case suggests that Congress intended that the
goal of preventing alienation of the land not apply to
interests in such land, like fossils, that become personal
property when severed from the land.

Page 6
12 F.3d 737, *743; 1993 U.S. App. LEXIS 32576, **19;
28 Fed. R. Serv. 3d (Callaghan) 232
6 The government seized the fossil pursuant to a
search warrant as part of a criminal investigation.
Black Hills argues that the government cited
violations of the Antiquities Act as one basis for
the seizure knowing that the Act did not apply.
We need not evaluate the government's articulated
rationale for the seizure, however, because we
conclude that the seizure was within the scope of
the trust relationship with Williams.
Black Hills next argues in effect that holding
Williams' sale invalid is bad policy. It asserts that
Williams was competent to [*744] sell the fossil even if
it was an interest in land and that finding the sale invalid
would undermine the current legislative trend favoring
tribal self-determination. [**20] These points are
matters of policy for Congress to consider, not federal
courts. The current statutory scheme reflects Congress's
desire to protect beneficial owners of Indian trust land
like Williams regarding disposition of interests in such
land. See 25 U.S.C. §§ 348, 464, 483; see also
Tooahnippah v. Hickel, 397 U.S. 598, 609, 25 L. Ed. 2d
600, 90 S. Ct. 1316 (1970) (explaining that the GAA's
legislative history "reflects the concern of the
Government to protect Indians from improvident acts or
exploitation by others"). Congress may very well
determine that the historic practice of shielding beneficial
owners from their own improvident decisions,
unscrupulous offerors, and whatever other evils the
enacting Congresses contemplated decades ago is no
longer wise. 7 Until it does, however, we are bound to
apply the statutes and regulations forbidding such owners
from alienating trust land without the Secretary's
approval.
7 Congress has already eliminated many of the
protections earlier statutes provided for Indians.
Section 483 itself, for instance, allows Indians to
apply to the Secretary for removal of alienation
restrictions. Thus, the statutes reflect the trend
toward Indian self-determination. Although it has
diminished the practice of protecting Indians,
however, Congress has not completely eliminated
it. Williams was free to request that the
government end the trust or that he be allowed to
alienate his land, but he did not. Because he did
not, the vestiges of protection that remain still
apply.
[**21] Black Hills and amici curiae the Libertarian

Party of South Dakota and the National Libertarian Party
make several other brief arguments. First, we reject
amici's suggestion that we remand the case to the
Secretary to consider nunc pro tunc approval of the sale.
The statute provides that "application of the Indian
owners" is a prerequisite to the Secretary's approval of
conveyances of trust land. 25 U.S.C. § 483. The Secretary
may not consider the transaction at issue here because
Williams has never submitted an application. Moreover,
we reject Black Hills' argument that the United States
lacks standing to claim trust ownership of Sue because
neither the Secretary nor Williams are parties. Williams
is not a necessary party, see Heckman v. United States,
224 U.S. 413, 444, 56 L. Ed. 820, 32 S. Ct. 424 (1912),
and the United States may claim trust title without the
Secretary because the trust patent names it as trustee.
We also reject Black Hills' claim that the district
court's decision violated its due process rights because
the government seized the fossil without a
pre-deprivation hearing and because Black Hills added
value to Sue [**22] that it will be unable to recoup.
Because we find that Black Hills has no interest in Sue,
we reject its claim that the lack of a pre-deprivation
hearing violated its rights. Moreover, although it is
unfortunate that Black Hills spent a great deal of time and
resources adding value to a fossil it does not own,
concluding that Black Hills' transaction with Williams is
void does not deprive Black Hills of due process where it
had no interest in the fossil and it could have taken any
number of steps to protect itself in the first place. At the
very least, for instance, that the fossil was embedded in
land located within the boundaries of the Cheyenne River
Sioux Indian Reservation should have alerted Black Hills
to the possibility that the federal government had some
interest in Sue. Because it did not, however, we hold that
the United States holds Sue in trust for Williams pursuant
to the trust patent.
C. Rule 11 Sanctions
Counsel for Black Hills, Joseph Butler, challenges
the district court's order imposing sanctions under Fed. R.
Civ. P. 11 8 on him for naming the School of Mines as a
defendant in the first amended complaint. The court
awarded the School of Mines attorney's fees [**23]
because it found that the school was not a proper
defendant to Black Hills' quiet title action, 9 reasoning
that the school had "no conceivable basis to assert any
rights [*745] to the fossil" and "was nothing more than a

Page 7
12 F.3d 737, *745; 1993 U.S. App. LEXIS 32576, **23;
28 Fed. R. Serv. 3d (Callaghan) 232
mere depository of the fossil." D. Ct. Mem. Op. and
Order at 3-4 (Sept. 8, 1992).
8 The amendments to Rule 11 that went into
effect on December 1, 1993, do not affect our
analysis.
9
As we noted above, Black Hills' second
amended complaint sought the return of Sue and
abandoned the quiet title claim. At issue here is
the district court's decision to sanction Butler for
naming the School of Mines a defendant in the
case when Black Hills was asking the court to
quiet title.
We review the district court's imposition of sanctions
under Rule 11 for an abuse of discretion. Miller v.
Bittner, 985 F.2d 935, 938 (8th Cir. 1993). The district
court's task is to ascertain whether the attorney met the
objective reasonableness standard. Id. (citations omitted).
Improperly naming [**24] a party in a suit justifies Rule
11 sanctions when "joining the party [is] baseless or
lacking in plausibility." Community Elec. Serv. of Los
Angeles v. National Elec. Contractors Assoc., 869 F.2d
1235, 1245 (9th Cir.) (citing Rachel v. Banana Republic,
Inc., 831 F.2d 1503, 1508 (9th Cir. 1987)), cert. denied,
493 U.S. 891 (1989).
We find that Butler's decision to name the School of
Mines as a defendant here was not baseless or lacking in
plausibility. Initially, Black Hills framed its case as a
quiet title action. At the time Black Hills named it a
defendant in the first amended complaint, the School of
Mines was in possession of Sue. The district court, citing
75 C.J.S. Quieting Title § 54, found that the School of
Mines had no "material subsisting interest" in Sue
because it possessed her merely as an agent for the
government and thus was not a proper party. D. Ct. Mem.
Op. and Order at 3. The court's analysis of the merits of
the School of Mines' status as a proper party would have
been the correct inquiry on a motion to dismiss. It was
not, however, the correct inquiry on a motion [**25] for
Rule 11 sanctions.
Rather, as Community Electric Service suggests, the
focus in the Rule 11 context should be on the plausibility
of including the School of Mines as a party at the
complaint stage. We think that the School of Mines'
possession of Sue, albeit as a "depository" for the
government, gave Black Hills a plausible argument that
the School of Mines had a sufficient interest in the
property to be named as a defendant in a quiet title action.

Indeed, the district court itself noted that "in some
circumstances possession of the object in dispute may be
enough to justify suing the possessor in a quiet title
action." Id. Case law on this issue is sparse and we will
not force Butler to bear the burden of Rule 11 sanctions
where it is unclear precisely in what "circumstances"
possession is enough to sue the possessor. Cf. Mareno v.
Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (reversing
award of Rule 11 sanctions where plaintiff's claim,
although ultimately unsuccessful, involved "the
complexities of New York long arm jurisprudence"), cert.
denied, 498 U.S. 1028, 112 L. Ed. 2d 673, 111 S. Ct. 681
(1991). Butler had a plausible claim that the School
[**26] of Mines' possession gave it the "material
subsisting interest" in Sue needed to render it a proper
party in the case.
Moreover, regardless of whether the School of Mines
asserted an ownership interest in Sue, the fact remains
that it retained possession of her. There is ample authority
for the proposition that the court in a quiet title action, in
order to afford complete relief, may order that a
defendant relinquish possession of the subject property to
the plaintiff. See 74 C.J.S. Quieting Title §§ 96, 108
(1951). Thus, naming the School of Mines as a defendant
here was not baseless because the school clearly had an
interest in Sue--possession--that a quiet title action could
affect; failure to include the School of Mines might have
required Black Hills to bring an entirely different action
to enforce its right to possession if the court found that it
had such a right. Once the School of Mines represented in
open court that it would abide by any order the district
court made and would not assert any separate interest in
Sue, counsel for Black Hills immediately assented to
dismissal of the school from the case. See Status
Conference Tr. at 16. Thus, we hold that the [**27]
district court abused its discretion in imposing Rule 11
sanctions on Butler. Although naming the School of
Mines as a defendant in the first amended complaint
ultimately proved to be unnecessary, Butler acted
reasonably under the existing facts and law.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of
the district court that the United States holds Sue in trust
for Williams pursuant to the trust patent, and we reverse
the district court's order imposing Rule 11 sanctions on
Joseph Butler.
[*746] ORDER DENYING PETITION FOR

Page 8
12 F.3d 737, *746; 1993 U.S. App. LEXIS 32576, **27;
28 Fed. R. Serv. 3d (Callaghan) 232
REHEARING AND SUGGESTION FOR REHEARING
EN BANC
Feb. 2, 1994.
(No. 93-1602)
The suggestion for rehearing en banc is denied.
The petition for rehearing by the panel is also denied
with the following explanation. In its petition for
rehearing, Black Hills Institute of geological research
(Black Hills) relies on United States v. Good,
U.S. ,

114 S. Ct. 492, 126 L. Ed. 2d 490 (1993), for the claim
that it was entitled to an adversary hearing before the
Department of Justice seized the fossil "Sue" from it. In
Good, it was undisputed that Good owned the real
property that the [**28] government had siezed without
forst providing Good with an adversary hearing. See id. at
,
, 114 S. Ct. at 496. This fact distinguishes Good
from the instant case, where the panel determined that
Black Hills did not own the property in question. See
Black Hills Inst. of geological research v. United States
dep't of Justice, 12 F.3d 737, 742-43, (8th Cir. 1993).

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